Michael John Westerman: The Future of Smokable Hemp in Texas + The Detriment of Delta 8

Authored By : “Michael John Westerman – American Writer, Consultant, and Cannabis Advocate”

Contact at: https://michaeljwesterman.com/

Crown Distributing LLC; America Juice Co. LLC; Custom Botanical Dispensary, LLC; 1937 Apothecary, LLC v. Texas Department of State Health Services; John Hellerstedt, Commissioner of the TX DSHS

AUSTIN, Tex. – On 3/22/21, Judge Livingston of the 261st District heard “Crown Distributing LLC v. Texas Department of State Health Services”. I “attended” the trial, which in this CV19 era means that I tuned in to the live Youtube feed of the trial. Not quite the in-person spectacle, with after-the-event networking, I would have hoped for, but enjoyable nonetheless.

The Plaintiffs, a variety of hemp producers with interrelated owners represented by a trio of attorneys, contend that a recent ban on smokable hemp products in Texas, which has temporarily been enjoined from enforcement, is unconstitutional. The argument was rooted in governmental interference with business, and made note of the constitutional issue, although focused largely upon precedent related to eyebrow threading training hours requirements in Patel. Patel’s test concerns whether there is a legitimate government interest, then as-applied must consider whether the law is oppressive as weighed against the government interest.

Federally, hemp has been made legal, and conflict of laws cases are a landscape I’d have excavated in search of rich arguments to mine from the depths of conflicts of sovereigns. Texas may have at one point been a nation, although at this point in TX v. Fed, the Fed trumps the Lone Star State. Former President Trump, no pun intended, established the hemp act that does this. A laser focus on the conflict of sovereigns could have transcended the muddy waters concerning hemp flower v. cannabis flower, and fact that hemp flower comes from the same cannabis sativa L plant, from which derivatives are illegal under federal and TX law.

It was in these muddy waters that Charles K. Eldred, assistant attorney general for TX, propelled about like a Floridian gator, one that looks like Robert Patrick in his role as the T1000. The defense focused upon the parallels between hemp flower and cannabis flower, and the prerogative of the TX DSHS to ban the sale of smokable hemp products that are indiscernible from cannabis, which is illegal at this point in Texas. The argument effectively tracked the drug facsimile/counterfeit laws of the DEA, although did not mention them in name.

Under drug facsimile/counterfeit laws, substances represented as illegal drugs, but which are not, can still lead to charges on the illicit substance claimed by the would-be drug dealer. Think baby laxative mixed 50/50 with a kilogram of cocaine. When found in possession, the entire kilo will be charged, plus the weight of the packaging. Try to sell a baggie of oregano represented as cannabis in a prohibition state to an undercover? Congratulations, you’re being indicted for possession with intent to distribute. Dealers often forget that packaging counts in the gram count. When in counties like Travis in which Austin rests, when 2 ounces, 56-57 grams, are a misdemeanor and anything above a felony, one should remember a plastic baggie weighs 1 gram.

The outcome of Crown Distributing LLC v. TXDSHS has yet to be announced by Judge Livingston. I anticipate that the state’s argument, which need only meet a rational basis test, will be sufficient to establish the ban. The ban would only preclude the sale of smokable hemp products, meaning cigarettes and vapes largely, but hemp flower would still be available for roll-it-yourselfers.

Ultimately the ban will do little to impact cannabis in Texas. I advocate for a legal, regulated, and taxed recreational cannabis industry in Texas, one that mirrors the craft beer industry. I want to see micro-groweries and smoke-bars seeded across the communities of Texas, generating billions in taxable revenue while employing thousands of Lone Stars. Through effective cannalobbying, which I’m actively seeking out professional opportunities in to contribute towards beyond my unilateral efforts, cannabis could be legitimized here, although facsimile cannabis products like “Delta 8” may manifest speed bumps on the road to legalization.

The Public Image Detriments of “Delta 8”

Smokable hemp is a half-measure that keeps the public perception of cannabis up in smoke. A new derivative of legal hemp known as “Delta 8” has emerged as the new “K2”, a legal marijuana replacement. According to Hometown Hero CBD owner Lukas Gilkey, in Austin, TX, as quoted in the New York Times on 27 February, 2021 “You have a drug that essentially gets you high, but is fully legal… [t]he whole thing is comical”.

What isn’t funny is the fact that such gray-area products do very real damage to the public image of cannabis as a legitimate industry. It isn’t marijuana, although David Downs of Leafly.com in the same New York Times article called it “marijuana light”. Partial prohibition persists because when avenues of legality are opened, they are littered with halfway-legal products that pull the door shut that would lead us to a fully legal marketplace.

A transparent, non-shady, professional environment around cannabis in Texas is necessary to need to win over conservatives. CBD for pain relief is time-tested and state-approved, and functions quite well in edible form, whether as food products or tinctures. Smokeable products that mimic cannabis are facsimiles of illegal drugs. They alert law enforcement, and make squares uncomfortable. If parents don’t know whether their children are vaping tobacco, CBD, or THC, they aren’t likely to vote positively for any of them, to mutually preclude the kids from them all. We don’t need cannabis-like products being sold at gas stations, we need professional, ID-checking, adults-only dispensaries. Alcohol and nicotine are available because they are perceived as legitimate, and are regulated. When backyard bootleggers gave way to industrial distilleries, the consumer I can assure you rejoiced. Google “end of prohibition 1920s” and click on the images tab. Yes. We need this for cannabis in the 2020s.

Agricultural byproducts with high demand that intoxicate users should be tested, regulated, and subsequently taxed by the government. This is to support the safety of the consumer, while providing them choice on the market. I don’t want a Budweiser, personally, I want a 903 Brewing imperial stout aged on coffee and Ghirardelli white chocolate. Or, if I’m whale hunting, a “Moment of Clarity” stout aged on maple syrup from Treehouse Brewing. I want to drink beer knowing it has not been cut with chemicals, knowing that my money paid to the brewer goes back into the community through taxation. Legalization and commercialization provide this to us.

Legalization + Regulation + Taxation = An Ideal THC Trilogy for Texas

Cannabis customers deserve the same level of choice as nicotine or alcohol on a retail market in Texas. Our northerly neighbor Colorado is doing just fine with it, and paying for higher education for those that need it. By keeping cannabis illegal the government is effectively telling its citizens “We know you are using this. Instead of providing you a clean, regulated, quality-tested store to buy it from, we’d rather you turn to the weird dude your friend knows operating on the black market, and take a risk that could lead to the destruction of your entire life. Whatevs.” Let’s stop messing around, Texas, take this gold glistening Roman war carriage by the reigns, and gallop into those billions together. Again, google image search “End of Prohibition 1920s”. That, but for cannabis in the 2020s, is the ideal.


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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild